The parties to a dispute over whether National Institutes of Health (NIH) guidelines on stem cell research violate a congressional appropriations rider that bars federal funding for research in which a human embryo is destroyed have filed their supplemental briefs on competing motions for summary judgment pending before a U.S. district court in Washington, D.C. Sherley v. Sebelius, No. 09-01575 (U.S. Dist. Ct., D.D.C., briefs filed June 24, 2011). As discussed in Issue 13 of this Bulletin, a divided D.C. Circuit Court of Appeals panel determined that the NIH guidelines are not clearly at odds with the statute (Dickey-Wicker) and thus, the district court abused its discretion when it granted a preliminary injunction to two scientists who opposed the guidelines and briefly halted federal funding of this research.

The plaintiffs contend that they are entitled to summary judgment, arguing that funding for human embryonic stem cell (hESC) research inevitably creates “a more-than-minimal risk that human embryos will be destroyed in order to derive more hESCs for federally funded research purposes.” They also argue that the guidelines were promulgated in violation of the Administrative Procedure Act because NIH purportedly disregarded “roughly 30,000 comments—60% of all comments received—that question the merits of hESC research based on its many ethical and scientific shortcomings.”  

The Justice Department argued on behalf of Secretary of Health and Human Services Secretary Kathleen Sebelius that the D.C. Circuit’s ruling “conclusively resolves plaintiffs’ claim under Dickey-Wicker,” and thus “summary judgment should be awarded in favor of defendants.”  

The defendants’ brief underlines the D.C. Circuit’s distinction between hESC research, which can be funded, and research that derives hESCs, which cannot be funded under Dickey-Wicker. The brief predicted that the plaintiffs will “advance an alternative theory that Dickey-Wicker forbids any actions that ‘incentivize’ the destruction of embryos.” In fact, the plaintiffs argued in their brief that the guidelines and research encouraged by the guidelines “obviously subject embryos to risk of injury or death because they use, and create demand for, hESCs that can be obtained only by destroying embryos.”  

According to the defendants, “almost all of the stem cell lines on the NIH registry were created from embryos donated prior to the Guidelines, when federal funding for research on new lines was not available.” They further observe, “Plaintiffs’ assertion that the Guidelines somehow create a known risk to embryos is meritless when the Guidelines do nothing to change the private sources of funding for the process of derivation. It is, accordingly, implausible to assume that a researcher ‘knowingly’ subjects embryos to risk simply because he uses NIH funds instead of private funds for hESC research. Given the range of options that is available to potential donors, and would be available to them with or without federal funding for hESC research, it is not plausible to read Dickey-Wicker to prohibit funding for hESC research on plaintiffs’ ‘incentivization’ theory.”